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Law in The Federalists

Matthew Lyon: Free Speech Martyr

In 1798, Matthew Lyon was reelected to Congress while sitting in a jail cell. Convicted under the Sedition Act for maliciously criticizing President John Adams, he was forced to pay a $1000 fine and serve four months in prison. His attacks on the president had indeed been harsh. Lyon had labeled Adams's policies toward France proof of the president's "continual grasp for power" and his "unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice." Lyon made the case more succinctly in another speech—the president's policies proved him more fit for the "madhouse" than the executive office.18 But despite the severity of his language, most Americans believed his imprisonment was unjust—a blatant violation of first amendment rights. And so, when sent to jail, Lyon became an unlikely (and unlikable) free speech martyr.

Alien and Sedition Acts

The Sedition Act which condemned Lyon was one of four laws passed by the Federalist controlled Congress in 1798. Commonly referred to as the Alien and Sedition Acts, these laws, which restricted speech, changed naturalization requirements, and gave the president extraordinary powers to deport non-citizens deemed dangerous to public safety, were part of the hysterical reaction to the XYZ Affair. In the wake of this disastrous diplomatic mission, war with France seemed imminent. To prepare for the conflict, the Federalist Congress strengthened the army and navy, and passed the Alien and Sedition acts to silence or remove their domestic opponents.

Critics of the acts denounced them as nakedly political. And indeed, to a certain extent they were. The Sedition Act was used to harass Republican opponents of the Federalist Congress and administration. The Naturalization Act schemed to weaken the Republican Party by extending the waiting period for citizenship for immigrants, most of whom would become Republican voters. But to be fair to the Federalists, and to better understand the evolution of America's political ideology, we need to explore the logic behind these acts and the debate they inspired.

The Role of Free Speech

For starters we must remind ourselves that our modern understanding of free speech had yet to be worked out. We have come to appreciate speech as a fundamental right, almost inherent within the human condition—what the founders would have labeled inalienable. But for most eighteenth-century thinkers speech was more of a civil right—necessary to ensure that the public could acquire the information necessary to make sound political judgments. In other words, free speech served a broader purpose—to facilitate the political process. Moreover, it was generally believed that this political process should aim toward the advancement of the common good. The political arena should not be a battleground for divergent interest groups—it should be a calm and serious forum in which statesmen identified the true interests of the community. That being the case, Federalists argued that only reasoned, decorous speech should be protected. Speech that was malicious, or too disrespectful of government officials, poisoned the political well and undermined the ability of statesmen to reach consensus.

Matthew Lyon: Political Opportunist

For men with this understanding of politics, Matthew Lyon represented the dangerous underside of popular government—the sort of scheming rogue that could corrupt the political arena. And indeed, Lyon had a knack for finding personal opportunity in public service. During the Revolution, he served as Clerk of the Court of Confiscation—an agency responsible for the redistribution of confiscated Loyalist property—and, magically, much of the confiscated land ended up in his own name. After the war, while serving in another state office, he again managed to secure lucrative public lands for himself. When elected to Congress in 1797, he immediately earned a reputation as a loudmouth. In his debut on the floor, he mocked the House's rules regarding speech and behavior and arrogantly proclaimed he had no time for Congressional protocol given his more important political agenda. The Federalist press was soon lampooning "Rugged Mat, the democrat," but it was Roger Griswold, a Federalist representative from Connecticut, who finally took action.

On 30 January 1798, Lyon, always able to draw a crowd, was ranting during a recess about the self-interested motives of Connecticut's representatives. Someday, he boasted, he would expose them and their aristocratic ways to the people. Griswold, overhearing the comment, mocked Lyon. Reminding the crowd that Lyon had been court-martialed during the Revolution for cowardice and sentenced to wear a wooden sword, he asked if the humiliated veteran planned to use that stick to wage this new battle. Lyon responded by spitting in Griswold's face. Two weeks later, after the House failed to expel Lyon, Griswold decided to punish Lyon himself. Wielding his own wooden sword—a hickory cane—he thrashed Lyon soundly on the floor of the House.

For Federalists, Griswold's caning of Lyon was an appropriate response to his arrogant and intemperate behavior. When the Sedition Act passed a few months later, making illegal "any false, scandalous and malicious writing or writings against the government of the United States," it was only a matter of time before Lyon gave its enforcers the material they needed to send him to jail.19

The Sedition Act: Defensible? Oppressive? Progressive?

When viewed through the ideological lens of eighteenth-century conservatives, Lyon's silencing appears more understandable. More interested in self-advancement than the general welfare, more interested in provocation and division than bipartisanship and consensus, Lyon embodied a form of speech that could be seen as a poison to be removed rather than protected. Our own conceptions of free speech have evolved alongside our understandings of the purposes of the political process; that is, we have developed a far greater tolerance for even the most abrasive and even violent forms of speech just as we have come to accept the legitimacy of conflict, division, and self-interest within the political arena. But from the standpoint of classical republican theory, with its emphasis on self-sacrificing political behavior and dispassionate political discourse, this sort of clarity vanishes. Moreover, when compared to the understanding of sedition drawn from British common law, the Sedition Act takes on a certain progressive quality.

Sedition Under British Common Law

British common law offered a very broad definition of sedition. A person could be found guilty of the crime for any statement that disrespected the social hierarchy upon which the political order rested. Believing that there was a natural order to things—superiors and inferiors, rulers and subjects—British common law labeled as seditious any statement that threatened to subvert the "natural" social hierarchy.

Moreover, a person could be found guilty of sedition under British law regardless of the truth, effect, or intent of the statement. A person could whisper a half-serious but truthful joke to a friend—"the prime minister is a philandering drunk"—that resulted in no real damage to the official or the political order, but still could be found guilty. This was because the courts could legally impose a "bad tendency test" and consider what might have happened as a consequence of a statement. What actually did happen was beside the point. If the court could imagine a plausible set of negative events resulting from an individual's statement, he could be convicted of sedition on the basis of this fabricated scenario.

With the restrictive British common law as a background, the Sedition Act adopted by Congress in 1798, while far short of our standards for the protection of speech, represented in an odd way something of a half-step in the right direction. A person could not be convicted if his insults to the powerful were truthful. Furthermore, the state had to prove malicious intent for a charge of sedition to stick. The Sedition Act also allowed juries to rule on the question of law as well as the facts; that is, citizen jurors were given the authority to determine not just whether a certain statement was made, but whether it really constituted sedition.

The passage of this act also encouraged Americans to think more fully about what the freedom of speech and press should mean. When the First Amendment was added to the Constitution, most supporters believed that while the federal government had no business interfering with speech, state governments remained free to do so. Moreover, the guide provided by British common law only denied government the power of prior restraint. That is, it argued that while the press could not be prevented from publishing something, the government could prosecute the publisher and writer for sedition following publication. Given the broad definition of sedition under British common law, there was really very little protection within this legal tradition at all. But in the aftermath of the Sedition Act, many Americans begin to question whether the understanding of free speech provided by the British was adequate to the needs of America's republic—whether freedom of the press meant freedom from subsequent prosecution as well as the guarantee of no prior restraint.

Matthew Lyon—political opportunist, self-advancing boor, and America's first free speech martyr—is not the easiest person to celebrate. The Sedition Act is almost as flawed a monument to our ever-unfolding concept of free speech. But each, in its own way, played a critical role in the expansion of those liberties we see as essential and defining features in our free society.